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Smt. Kishan Pyari Vs. Smt. Shanti Devi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Nos. 198 and 199 of 1978
Judge
Reported inAIR1979Raj170; 1979()WLN76
ActsRajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 13(1) and 14(2); ;Rajasthan Premises (Control of Rent and Eviction) (Amendment) Ordinance, 1975
AppellantSmt. Kishan Pyari
RespondentSmt. Shanti Devi
Appellant Advocate M.L. Johri, Adv.
Respondent Advocate M.L. Calla, Adv.
DispositionRevision applications dismissed
Cases ReferredSmt. Kishan Pyari v. Smt. Shanti Devi
Excerpt:
.....facts relating to the comparative hardship on november 9, 1975, and in pursuance thereof when the amended plaint was filed on may 5, 1977 it would tantamount to filing of a new plaint.;when the plaintiff has incorporated the facts relating to comparative hardship, it cannot be said that by doing sc, he has taken a new ground of eviction. the amendment of plaint by incorporating facts regarding comparative hardship would relate back to the date of the suit as originally filed where new ground is added.;revision dismissed - - (2) no decree for eviction on the ground set forth in clause (h) of subsection (1) of section 13 shall be passed if the court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is..........the landlady and the tenant. the learned munsif allowed theapplication on april 24, 1977 and the amended plaint was submitted on, may 5, 1977. the defendant-petitioner while resisting the suit, inter alia, raised an objection in para 7 of the written statement, the substance of which is that since the plaintiff had moved an application for amendment of the plaint on november 9, 1976, the suit for ejectment from the shop in dispute, is not maintainable under section 14 (3) of the act the learned munsif, after hearing arguments on the defendant's application dated november 21, 1977, framed issue no. 10,' which when translated into english, reads as follows: 'whether in view of the fact that the plaintiff's plaint was amended, on the basis of the amendment application dated october 9,.....
Judgment:
ORDER

S.K. Mal Lodha, J.

1. These two connected revisions before me involve a common question of law and, therefore, it will be convenient to dispose them of by a common order.

2. The petitioner is defendant-tenant and the non-petitioner is plaintiff-landlady. The plaintiff instituted a suit for arrears of rent and ejectment against the defendant in the court of Munsif City, Jodhpur on February 7, 1975 on the ground of reasonable and bona fide necessity under Section 13 (1) (h) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 ('the Act' hereafter). It is common ground between the parties that the shop was let out for commercial and business purposes. During the pendency of the suit, the Act was amended. By means of amendment subsections (2) and (3) were added by the amending Ordinance No. XXVI of 1975 with effect from September 29, 1975. Ordinance No. XXVI of 1975 was replaced by the Rajasthan Premises (Control of Rent & Eviction) (Amendment) Act. 1976 (No XIV of 1976) published in the Rajasthan Gazette Extraordinary Part 1VA dated February 13, 1976. Sub-sections (2) and (3) of Section 14, read as under;

'(2) No decree for eviction on the ground set forth in clause (h) of subsection (1) of Section 13 shall be passed if the court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available to the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it.

Where the court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the court shall pass the decree in respect of such part only.

(3) Notwithstanding anything contained in any law or contract, no suit for eviction from the premises let out for commercial or business purposes shall lie against a tenant on the ground set fourth in Clause (h) of Sub-section (1) of Sec. 13 before the expiry of five years from the date the premises were let out to the tenant.'

As the premises were rented out on March 30, 1972 and the suit was brought on February 7, 1975, it was not within a period of 5 years from the date the premises in suit were let out to the defendant and, therefore, he raised an objection before the trial court that the suit was not maintainable because of Section 14 (3) of the Act. This plea was negatived by the trial court by its order dated August 14, 1976 and it held that there is no bar to the maintainability of the suit as the amendment is not applicable to a pending suit. The defendant preferred S. B. Civil Revision No. 5tl of 1975 against that order to this court. The revision was dismissed and it was held that Section 14 (3) of the Act as amended by Ordinance No. XXVI of 1975 and replaced by the Amendment Act No. XIV of 1976 is prospective in operation and cannot apply to suits which had already been filed before the coming into force of Ordinance No. XXVI of 1975. It may be stated that this revision was decided on January 17, 1977.

3. It needs to be mentioned here that on November 9, 1976, an application was moved on behalf of the plaintiff for amendment of the plaint for incorporating the facts relating to comparative hardship between the landlady and the tenant. The learned Munsif allowed theapplication on April 24, 1977 and the amended plaint was submitted on, May 5, 1977. The defendant-petitioner while resisting the suit, inter alia, raised an objection in para 7 of the written statement, the substance of which is that since the plaintiff had moved an application for amendment of the plaint on November 9, 1976, the suit for ejectment from the shop in dispute, is not maintainable under Section 14 (3) of the Act The learned Munsif, after hearing arguments on the defendant's application dated November 21, 1977, framed issue No. 10,' which when translated into English, reads as follows:

'Whether in view of the fact that the plaintiff's plaint was amended, on the basis of the amendment application dated October 9, 1976 (there is mistake in regard to the date of the application for amendment, in fact the application was moved on November 9, 1976), the suit is not maintainable.'

The learned Munsif, after hearing arguments on this issue, decided it in favour of the plaintiff and against the defendant on January 23, 1978 and held that the suit is maintainable. Against this order dated January 23, 1978 by which issue No. 10 was decided in favour of the plaintiff and against the defendant, the defendant filed g. B. Civil Revision No. 198 of 1978 on May 16, 1978. The defendant also preferred appeal under Section 22 of the Act before the District Judge, Jodhpur against this very order dated January 23, 1978. The learned District Judge, by his order dated April 4, 1978, dismissed the appeal on two grounds; (1) that the order dated January 23, 1978, passed by the learned Munsif is correct on merits, and (2) that the appeal preferred by the defendant was not maintainable. Feeling aggrieved by the appellate order dated April 4, 1978, the defendant-petitioner has preferred S. B. Civil Revn. No. 199 of 1978.

4. As stated above, in both the revisions, the order dated Jan, 23, 1978, by which issue No. 10 was decided against the defendant is under challenge and, therefore, both the revisions are disposed of by a common order.

5. It may be stated here that the learned counsel appearing for the defendant-petitioner, did not address me on the question that the rinding of the learned District Judge holding that the appeal was not maintainable, is not cor-rect. Mr. M. L. Johri, learned counsel for the petitioner, has questioned the finding recorded by the Additional Munsif, on issue No. 10 and contended that the suit is not maintainable. He urged that on unamended allegations in the plaint and evidence in support thereof the plaintiff is not entitled to a decree for ejectment because of restriction imposed by Section 14 (2) and therefore, it is when she has put in, the amended plaint that the suit shall be considered to have been instituted under Section 13 (1) (h) and Section 14 (2). Learned counsel means to suggest that the suit on the aforesaid new ground would be considered to have been instituted when he files the amended plaint containing these grounds and, therefore, for the purpose of period provided under Section 14 (3) the suit will be deemed to have been instituted on the date when the application for amendment of the plaint was filed i.e. November 9, 1976. He, therefore, submitted that the suit of the plaintiff on the ground mentioned under Section 14 (2) is not maintainable in view of the provisions of Section 14 (3). In support of his arguments, he placed reliance on K. Rama-chandran Chettiar v. G. Lakshminarayanaswami Chettiar, (1976) 2 Mad LJ 107 State of Rajasthan v. Rao Dhir Singh, AIR 1972 Raj 241 and B. Banerjee v. Anita Pan, AIR 1975 SC 1146. Mr. Calla, on the other hand, urged that though the application for amendment of the plaint was filed on November 9, 1976, it was allowed on April 24, 1977 and the amended plaint was filed on May 5, 1977, still the amendment so made would relate back to the date when the original plaint was filed i.e. February 7, 1975. He contended that no new grounds for eviction have been taken by the plaintiff for ejectment as Section 14 deals with 'restriction on eviction' whereas Section 13 (1) lays down grounds for eviction.

6. I have carefully examined the rival contentions. In the original plaint, the eviction was sought on the ground of reasonable and bona fide necessity under Section 13 (1) (h) of the Act. Sec. 14 deals with restriction on eviction and sub-section (3) thereof merely provides that the suit for eviction, from the premises let out for commercial or business purposes shall not lie against the tenant on the ground set forth in Clause (h) of Sub-section (1) of Section 13 before the expiry of five years from the date the premises were let out to the tenant.It has been held in Smt. Kishan Pyari v. Smt. Shanti Devi, 1977 Raj LW 77: (AIR 1978 Raj 9), which is a decision between the parties, that this provision is prospective in operation and cannot apply to suits which had already been filed before coming into force of Ordinance No. XXVI of 1975. This Ordinance came into force on September 29, 1975 and the suit was instituted on February 7, 1975. It is settled law so far as this Court is concerned, that Section 14 (2) of the Act is retrospective and before passing a decree for eviction on the ground contained in Section 13 (1) (h) of the Act, the Court is required to give finding with respect to comparative hardship and, therefore, whether amendment is allowed or not the court has to adjudicate on the question of comparative hardship of the landlord and tenant. In these circumstances, it cannot be said that when the plaintiff moved an application for incorporating the facts relating to the comparative hardship on November 9, 1976, and in pursuance thereof when the amended plaint was filed on May 5, 1977 it would tantamount to filing of a new plaint and as amendment application was moved before the expiry of the five years from the date of tenancy, the suit is not maintainable. Section 14 (2) of the Act merely provides that relief for eviction would not be granted even if the plaintiff succeeds in proving reasonable and bona fide necessity unless the court is satisfied that having regard to all the circumstances of the case including the question whether other reasonable accommodation is available to the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it. Sub-sections (2) and (3) of Section 14 do not contain any grounds for eviction. They merely restrict eviction when the ground of reasonable and bona fide necessity under Section 13 (1) (h) is established. When the plaintiff has incorporated the facts relating to comparative hardship, it cannot be said that by doing so, he has taken a new ground of eviction. The amendment of plaint by incorporating facts regarding comparative hardship would relate back to the date of the suit originally filed where new ground is added. After considering the provisions of Section 13 (1) and Clauses (f) and (ff) and Section 13 (3A) of the West Bengal Premises Tenancy Act (No. XII of 1956) (as amended by Act XXXIV of 1969), it was observed in B. Banerjee's case, AIR 1975 SC 1146 at p. 1157:

'Institution of a suit earlier has to be ignored for this purpose since that was not based on grounds covered by Clauses (f) and/or (ff) and is not attracted by subsection (3A). He begins proceedings on these new grounds only when he puts in his pleading setting out these grounds. In spirit and in letter he institutes his suit for recovery on the new grounds only on the date on which he puts in his new pleading. We cannot be ritualistic in insisting that a return of the plaint and a representation thereof incorporating amendments is the sacred requirement of the law. On the other hand social justice and the substance of the matter find fulfilment when the fresh pleadings are put in, subject of course to the three-year interval between the transfer and the filing of the additional pleading. Section 13 of the Amendment Act speaks of suits including appeals.'

Section 13 (3A) forbids, for a period of three years from the date of acquisition, suits by new acquirers of landlord's interest in premises, for recovery of possession on any of the grounds mentioned in Clause (f) or Clause (ff) of sub-section (1). In my opinion, Banerjee's case is not applicable to the facts and circumstances of this case. The provisions of Section 13 (3A) and Sub-sections (f) and (ff) of the West Bengal Premises Tenancy Act are retrospective whereas provisions of Section 14 (3) are prospective. In this case, no additional ground has been taken by the plaintiff for evicting the defendant. It may be mentioned here that the order allowing the amendment of the plaint was passed by the trial court on April 24, 1977. The defendant was not at all aggrieved against that order and the amended plaint was filed on May 5, 1977. In this case, the tenancy commenced from March 30, 1972 and the amended plaint was filed on May 5, 1977 and thus, on this date, five years from the commencement of the tenancy had already expired. Even if for the argument's sake, it is assumed that the amended plaint contained a new ground for eviction as contended by the learned counsel for the petitioner, still in accordance with the decision of their Lordships of the Supreme Court in B. Banerjee's case, the proceeding on the new ground had begun when the plaintiff had filed the amended plaintsetting out the new ground covered by Section 14 (2) of the Act. In these circumstances, it cannot be said that the learned Additional Munsif and the learned District Judge, Jodhpur, while confirming the finding in appeal, have exercised their jurisdiction illegally when it was held that the maintainability of the suit is not affected by the fact of moving an amendment application on November 9, 1976, and obtaining an order for the amendment of the plaint in consequence whereof the amended plaint was filed on May 5, 1977.

7. In this view of the matter, it is not necessary to discuss in, detail the other two authorities cited by the learned counsel for the petitioner.

8. For the reasons mentioned above, the decision on issue No. 10 calls for no interference by this Court.

9. No other point was raised by any of the parties before me.

10. The result is that these revision applications have no force and are accordingly dismissed. Having regard to the circumstances of the case, the parties are left to bear their own costs of these revision applications.


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